Citation Nr: 0419889
Decision Date: 07/22/04 Archive Date: 08/04/04
DOCKET NO. 98-05 399A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUES
1. Entitlement to service connection for the cause of the
veteran's death.
2. Entitlement to Dependency and Indemnity Compensation
(DIC) under the provisions of 38 U.S.C.A. § 1318 (West 2002).
REPRESENTATION
Appellant represented by: Texas Veterans Commission
WITNESSES AT HEARING ON APPEAL
Appellant and Daughter
ATTORNEY FOR THE BOARD
M. N. Hyland, Associate Counsel
INTRODUCTION
The veteran had active duty from January 1956 to December
1958. The veteran died in March 1997. The appellant is his
widow.
This matter comes before the Board of Veterans Appeals
(Board) on appeal from an April 1997 rating decision by a
Regional Office (RO) of the Department of Veterans Affairs
(VA). A notice of disagreement was received in July 1997, a
statement of the case was issued in November 1997 and a
substantive appeal was received in April 1998. The appellant
and her daughter testified at an RO hearing in March 1999.
The appellant failed to report to a Board hearing scheduled
for April 2004. Therefore, the hearing request is considered
withdrawn. 38 C.F.R. § 20.704(d) (2003).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required on her part.
REMAND
Preliminary review of the claims file reveals that the
appellant has not been afforded clear notice of the
provisions of the Veterans Claims Assistance Act of 2000
(VCAA). Veterans Claims Assistance Act of 2000, Pub. L. No.
106-475, 114 Stat. 2096 (2000), now codified at 38 U.S.C.A.
§§ 5102, 5103, 5103A, 5107 (West 2002). Implementing
regulations have also been implemented. See 38 C.F.R
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2003).
The Court has made it clear that failure to adequately show
compliance with VCAA notice requirements is remandable error.
See Quartuccio v. Principi, 16 Vet.App. 183 (2002); Charles
v. Principi, 16 Vet.App. 370 (2002); Huston v. Principi, 17
Vet.App. 195, 202 (2003). In the recent past, the Board had
been attempting to remedy any VCAA notice deficiency by
sending a VCAA letter to the appellant pursuant to 38 C.F.R.
§ 19.9(a)(2)(ii). However, this regulatory provision was
recently invalidated by the United States Court of Appeals
for the Federal Circuit. Disabled American Veterans v.
Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir.
2003). Therefore, while the Board regrets further delay, the
case must be returned to the RO for VCAA notice compliance.
The Board also notes a September 2003 written communication
from the appellant in which she appears to be requesting
copies of certain records. This matter should also be
clarified by the RO in view of the need to return the case
for VCAA notice.
Accordingly, the case is hereby REMANDED to the RO for the
following actions:
1. The RO should review the record and
take any necessary action to ensure
compliance with all notice and assistance
requirements set forth in the Veterans
Claims Assistance Act of 2000, Pub. L.
No. 106-475, 114 Stat. 2096 (2000), now
codified at 38 U.S.C.A. §§ 5102, 5103,
5103A, 5107 (West 2002), and implementing
regulations, now codified at 38 C.F.R
§§ 3.102, 3.156(a), 3.159 and 3.326(a)
(2003). The RO should ensure that the
appellant has been properly advised of
(a) the information and evidence not of
record that is necessary to substantiate
her claim, (b) the information and
evidence that VA will seek to provide,
(c) the information and evidence that the
appellant is expected to provide, and (d)
the need for the appellant to submit any
and all evidence in her possession that
she believes is relevant to her claim.
2. The RO should also contact the
appellant and clarify her September 2003
written communication and take
appropriate action to furnish her with
any identified records.
3. After undertaking any additional
development which the RO may deem
necessary, the RO should review the
expanded record and determine if the
benefit sought can be granted. If
necessary, the appellant and her
representative should be furnished an
appropriate supplemental statement of the
case and be afforded an opportunity to
respond. Thereafter, the case should be
returned to the Board for appellate
review.
The appellant and her representative have the right to submit
additional evidence and argument on the matter or matters the
Board has remanded. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate
action must be handled in an expeditious manner. See The
Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a),
(b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§
5109B, 7112).
_________________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).